Johnson v. Poway Unified Sch. Dist.

• Citation: 658 F.3d 954,11 Cal. Daily Op. Serv. 11718,32 IER Cases 1409,113 Fair Empl.Prac.Cas. (BNA) 358,2011 Daily Journal D.A.R. 13903,273 Ed. Law Rep. 110
• Decision Date: 13 September 2011
• Docket Number: No. 10–55445.,10–55445.
• Parties: Bradley R. JOHNSON, Plaintiff–Appellee,v.POWAY UNIFIED SCHOOL DISTRICT; Jeff Mangum, individually and in his official capacity as a Member of the Board of Education for the Poway Unified School District; Linda Vanderveen, individually and in her official capacity as a Member of the Board of Education for the Poway Unified School District; Andrew Patapow, individually and in his official capacity as a Member of the Board of Education for the Poway Unified School District; Todd Gutschow, individually and in his official capacity as a Member of the Board of Education for the Poway Unified School District; Penny Ranftle, individually and in her official capacity as a Member of the Board of Education for the Poway Unified School District; Donald A. Phillips, individually and in his official capacity as Superintendent of the Poway Unified School District; Dawn Kastner, individually and in her official capacity as Principal, Westview High School, Poway Unified School District; William R. Chiment, individually and in his official capacity as Assistant Superintendent of the Poway Unified School District, Defendants–Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

658 F.3d 954
113 Fair Empl.Prac.Cas. (BNA) 358
273 Ed. Law Rep. 110
32 IER Cases 1409
11 Cal. Daily Op. Serv. 11,718
2011 Daily Journal D.A.R. 13,903

Bradley R. JOHNSON, Plaintiff–Appellee,
v.
POWAY UNIFIED SCHOOL DISTRICT; Jeff Mangum, individually and in his official capacity as a Member of the Board of Education for the Poway Unified School District; Linda Vanderveen, individually and in her official capacity as a Member of the Board of Education for the Poway Unified School District; Andrew Patapow, individually and in his official capacity as a Member of the Board of Education for the Poway Unified School District; Todd Gutschow, individually and in his official capacity as a Member of the Board of Education for the Poway Unified School District; Penny Ranftle, individually and in her official capacity as a Member of the Board of Education for the Poway Unified School District; Donald A. Phillips, individually and in his official capacity as Superintendent of the Poway Unified School District; Dawn Kastner, individually and in her official capacity as Principal, Westview High School, Poway Unified School District; William R. Chiment, individually and in his official capacity as Assistant Superintendent of the Poway Unified School District, Defendants–Appellants.

No. 10–55445.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 5, 2011.Filed Sept. 13, 2011.

[658 F.3d 956]

Daniel R. Shinoff, Jack M. Sleeth, Jr. (argued), Paul V. Carelli, IV, Stutz Artiano Shinoff & Holtz, APC, San Diego, CA, for defendants-appellants Poway Unified School District, et al.Robert J. Muise (argued), Thomas More Law Center, Ann Arbor, MI, and Charles S. LiMandri, Law Offices of Charles S. LiMandri, Rancho Santa Fe, CA, for plaintiff-appellee Bradley R. Johnson.Francisco M. Negron, Jr., National School Boards Association, Alexandria, VA, and Thomas E.M. Hutton, Patterson

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Buchanan Fobes Leitch & Kalzer, Inc., P.S., Seattle, WA, for Amicus Curiae National School Boards Association and California School Boards Association in Support of defendants-appellants Request for Reversal.Ayesha N. Khan, Michael A. Blank, Americans United for Separation of Church and State, Washington, D.C., for Amicus Curiae Americans United for Separation of Church and State in Support of appellants.David Blair–Loy, ACLU Foundation of San Diego and Imperial Counties, San Diego, CA, for Amicus Curiae American Civil Liberties Union of San Diego and Imperial Counties in Support of plaintiff-appellee and Affirmance with Modification of Judgment.Steven W. Fitschen, the National Legal Foundation, Virginia Beach, VA, for Amici Curiae Christian Educators Association International and WallBuilders, Inc., in Support of plaintiff-appellee Urging Affirmance.Appeal from the United States District Court for the Southern District of California, Roger T. Benitez, District Judge, Presiding. D.C. No. 3:07–cv–00783–BEN–WVG.Before: BARRY G. SILVERMAN, RICHARD C. TALLMAN, and RICHARD R. CLIFTON, Circuit Judges.OPINION TALLMAN, Circuit Judge:

We consider whether a public school district infringes the First Amendment liberties of one of its teachers when it orders him not to use his public position as a pulpit from which to preach his own views on the role of God in our Nation's history to the captive students in his mathematics classroom. The answer is clear: it does not.

When Bradley Johnson, a high school calculus teacher, goes to work and performs the duties he is paid to perform, he speaks not as an individual, but as a public employee, and the school district is free to “take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 833, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). Just as the Constitution would not protect Johnson were he to decide that he no longer wished to teach math at all, preferring to discuss Shakespeare rather than Newton, it does not permit him to speak as freely at work in his role as a teacher about his views on God, our Nation's history, or God's role in our Nation's history as he might on a sidewalk, in a park, at his dinner table, or in countless other locations.

Because we further conclude that the school district did not violate Johnson's rights under either the Establishment or Equal Protection clauses of the United States Constitution, as applied by the Fourteenth Amendment,¹ we reverse the

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district court's award of summary judgment to Johnson and remand with instructions to enter summary judgment in favor of the Poway Unified School District and its officials on all federal and state claims. ²I

Bradley Johnson has spent more than 30 years teaching math to the students of the Poway Unified School District of San Diego County, California. In August 2003, he moved to the newly opened Westview High School to teach calculus and algebra. He teaches there still and is the faculty sponsor of the school's student Christian club.

In late 2006, a fellow teacher at Westview set this action in motion when he questioned Dawn Kastner, the newly hired principal of Westview, about two large banners prominently displayed in Johnson's classroom. Kastner, who had also heard about Johnson's banners from a student and another teacher, went to Johnson's classroom to see the banners for herself. What she found surprised her. In Johnson's classroom, two large banners, each about seven-feet wide and two-feet tall, hung on the wall. See Appendix. One had red, white, and blue stripes and stated in large block type: “IN GOD WE TRUST”; “ONE NATION UNDER GOD”; “GOD BLESS AMERICA”; and, “GOD SHED HIS GRACE ON THEE.” ³ The other stated: “All men are created equal, they are endowed by their CREATOR.” On that banner, the word “creator” occupied its own line, and each letter of “creator” was capitalized and nearly double the size of the other text.

Kastner recalled being overwhelmed by the size of the banners. She remembered walking into Johnson's class “and going, ‘Wow, these are really big.’ ” She was more concerned, though, about the message. “It was a math class,” she later explained. “There were a lot of phrases that individually or in context were not problematic at all. But because they were taken out of context and very large, they became a promotion of a particular viewpoint”—a religious viewpoint “that might make students who didn't share that viewpoint uncomfortable.” The “common thread in all of those were the words ‘God, Creator.’ Those were all sort of pulled out of the context of their original [meaning]—and the signs were, like, 10 feet, 7 feet, something like that. There were two very large signs.”

Unsure as to what she should do, Kastner called Melavel Robertson, one of Poway's assistant superintendents. She described the banners to Robertson and told her that “some people [had] mention[ed] that they don't know why these signs are allowed in the classroom, and I just saw what they're talking about.” At Robertson's request, she had pictures taken of Johnson's banners and sent to Robertson, who forwarded them to Bill Chiment, the assistant superintendent tasked with “legal issues.”

While waiting for further direction from the superintendent's office, Kastner met with Johnson to talk about his banners. She told him that she felt the signs might inappropriately emphasize the words “God” and “Creator” and suggested that his displays might be more appropriate if the passages were each displayed in the context of the historical artifact or document from which they were pulled. “We talked about the possibility of putting the

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entire thing up in context so if a phrase was from the Declaration [of Independence], put the entire Declaration up.” Also, “we talked about taking a smaller version of that and having smaller—smaller expressions of his personal beliefs around his desk area.”

Kastner asked Johnson to consider how a student of a different faith might feel if they walked into his classroom and saw his banners. “[T]hey may feel like, ‘Wow, I'm not welcome,’ or ‘I'm not gonna fit in this classroom.’ And they may feel bad. And I can't imagine that that would ever be your intent.” Johnson was not convinced. According to Kastner, he told her, “Dawn, sometimes that's necessary,” and refused to either remove his banners or display the more contextual versions the school offered to provide.⁴ He explained that he had displayed the banners in some form or another since 1982, that they simply contained patriotic phrases, and that he considered it his “right to have them up.”

After the meeting with Johnson, Kastner spoke with Chiment and informed him of their discussion. Eventually, the full school board approved the decision to order Johnson to remove the banners. On January 19, 2007, Chiment phoned Johnson and told him that he would need to remove his banners. Four days later, Chiment followed up his phone call with a letter directing Johnson to review Poway Unified School District Administrative Procedure 3.11.2, “The Teaching of Controversial Issues,” as well as California Education Code § 51511.⁵ He told Johnson to pay particular care to Poway's requirement that teachers “[f]ollow the requirements on prohibited instruction as contained in the California Education Code” and “[d]istinguish between teaching and advocating, and refrain from using classroom teacher influence to promote partisan or sectarian viewpoints.”

Chiment explained that the “prominent display of these brief and narrow selections of text from documents and songs without the benefit of any context and of a motto, all of which include the word ‘God’ or ‘Creator’ has the effect of using your influence as a teacher to promote a sectarian viewpoint.” He added that these uses also constituted “aid to a particular religious sect, creed, or sectarian purpose” because they were “not incidental or illustrative of matters properly included in...